Case number: CEI/14/0017
Whether the Council was justified in finding that a request made by electronic means, in the form of a message sent on a social media website, was invalid under Article 6(1) of the Regulations. Whether the Council was justified in finding that an electronic correspondence address was insufficient for the purpose of making a valid request under Article 6(1) of the Regulations. Whether the Council was justified in finding that the name of an unincorporated entity was insufficient for the purpose of making a valid request under Article 6(1) of the Regulations.
In accordance with Article 12(5), the Commissioner reviewed the decision of the Council. The Commissioner affirmed the decision of the Council that the request was not valid; however he varied the basis for the decision. The Commissioner agreed with the Council's finding that the request was invalid as it did not disclose the name of a natural or legal person. The Commissioner's decision differed in finding that social media correspondence was a valid electronic means by which a request could be made under Article 6(1)(a) of the Regulations, and in finding that a social media website could constitute a valid address for the purpose of Article 6(1)(c) of the Regulations. The Commissioner affirmed the practice of recognising associations, organisations, and groups where details of representative members are provided, but found that no representative had been nominated in this case.
On 12 September 2014 the appellant, in a public message sent from the "@windnoiseinfo" Twitter account, published a request under the Regulations. This message was addressed to the Council's Twitter account (@wexfordcoco), and attached an image file containing two paragraphs of text setting out the nature of the request.
The appellant is an internet-based environmental group, with four publicly visible elements; a Twitter account, a Facebook account, a website, and an email address. Twitter is an online social networking service that enables users to send and read short messages. Twitter messages are limited to 140 characters of text. Messages may include images, videos, and web-links. Twitter messages may be addressed to other users publicly as a form of correspondence. Twitter also has a private "direct message" function. The appellant's website contains geospatial depictions of noise emanating from wind farms. In addition to noise mapping activities, the appellant maintains a social media presence on Twitter and Facebook, where it comments on the wind energy industry, and engages in discussions with other users of social media. The appellant is not an incorporated body, and does not publicly acknowledge individual members.
This request related to information "as to how the map tweeted by [a third party Twitter account] was calculated and arrived at". The Council replied by Twitter, in a message sent two hours after the initial request and addressed to the appellant, stating "can you forward your request to email@example.com". Between 12 September and 15 October 2014, there were a number of exchanges on Twitter between the Council and the appellant concerning the initial request. In every instance, the Council stated that the appellant should contact the Council's environment section directly in order to make a request, and provided contact details. In a Twitter post of 13 October 2014, the appellant sought an internal review of the decision by the Council not to process the initial request.
In an email of 22 October 2014 sent to the appellant's publicly available email address, the Council stated that it did not regard the request of 12 September as valid because the appellant's "name and address and other contact details" had not been provided. The Council stated that these details were necessary to establish whether the appellant was a natural or legal person, and therefore a valid applicant under the Regulations. The Council cited Article 6(1) of the Regulations and Article 2(4) of Directive 2003/4/EC (the Directive) as authority for this position. The Council went on to state that it considered Twitter's 140 character limit to be impractical for the purpose of making requests under the Regulations, and advised that requests were to be made by email. On this basis the Council did not recognise the Twitter request of 12 September, nor did it acknowledge the subsequent request for internal review.
Scope of Review
Jurisdiction of the Commissioner to review decisions concerning Article 6 of the Regulations.
Before examining the substantive issues in this case, I consider it necessary to establish whether the Regulations or the Directive allow me to conduct a review of refusals made on the basis that a request was not accordance with Article 6 of the Regulations. In this case, the Council assessed the request of 12 September 2014, and concluded that it was not made pursuant to Article 6(1) of the Regulations. This decision was not notified to the appellant until 22 October, more than five weeks later, and after a request for internal review had been made. Article 3 of the Regulations defines the word "request" for the purposes of the Regulations as "a request for environmental information pursuant to Article 6". Accordingly, references to a "request" in the Regulations are to be construed as referring to requests which conform to the requirements of Article 6(1), unless the context suggests otherwise.
Article 6(1) of the Regulations states:
6. (1) A request for environmental information shall --
(a) be made in writing or electronic form,
(b) state that the request is made under these Regulations,
(c) state the name, address and any other relevant contact details of the applicant,
(d) state, in terms that are as specific as possible, the environmental information that is the subject of the request, and
(e) if the applicant desires access to environmental information in a particular form or manner, specify the form or manner of access desired.
The scope of matters which are subject to internal review is set out in Article 11(1) of the Regulations as follows:
11. (1) Where the applicant's request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.
This scope is further expanded by Article 11(5) of the Regulations, which states
(5) In sub-article (1) and article 12(3)(a), the reference to a request refused in whole or in part includes a request that --
(c) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (including the ground that the amount of the fee charged under article 15(1) is excessive).
My jurisdiction to review matters on appeal applies where a decision has been affirmed at internal review stage under Article 11, or where no decision has been notified to an applicant pursuant to Articles 10(7) and 12(4)(a)(ii) of the Regulations.
Directive 2003/4/EC (the Directive) implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention"). The Directive is transposed into Irish law by the Regulations. In National Asset Management Agency v Commissioner for Environmental Information  IESC 51, (discussed in detail below), the Supreme Court held that the interpretation of a transposing instrument must include analysis of the purpose of the underlying Directive. Recital 19 of the Directive states applicants "should be able to seek an administrative or judicial review of the acts or omissions of a public authority in relation to a request". Article 6 of the Directive provides for access to two stages of review. Article 6(1) sets out the scope of the first stage of review as follows:
"Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive."
The above article creates a broad scope for review of requests which is not limited to formal refusals and not qualified to any extent to say that member states may exclude access to review procedures where formalities have not been met.
Article 11(5)(c) of the Regulations transposes the content of Article 6 of the Directive, and provides that requests which have "otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive" may be construed as requests for the purposes of Article 11(1), and therefore subject to internal review. The purpose of Article 11(5)(c) is to give effect to the broad scope of review required by Article 6 of the Directive. In interpreting Article 11(5)(c), it is necessary to consider whether requests "otherwise" not dealt with in accordance with Article 3, 4 or 5 of the Directive constitute a distinct class of requests, not governed by the definition of "request" set out in Article 3 of the Regulations. In particular, the word "otherwise" in this context invites consideration of requests which could reasonably be regarded as requests for the purposes of Articles 3, 4, and 5 of the Directive, and not limited to requests which meet the procedural requirements of Article 6(1) of the Regulations.
Having considered the purpose of Article 6 of the Directive, and the wording of Article 11(5)(c) of the Regulations, I find that the word "request" in the context of Article 11(5)(c) refers to a broader category of request than defined by Article 3(1) of the Regulations. Specifically I find that Article 15(5)(c) refers to requests which could reasonably be regarded as requests for the purposes of Articles 3, 4, and 5 of the Directive, and not to the narrower category of Article 6(1) compliant requests made under the Regulations.
On this basis, in the particular circumstances of this case I find that a right to an internal review arises under Article 11(5)(c) of the Regulations. As no internal review was provided in this case, despite a request being made on 13 October 2014, I find that this Office has jurisdiction to consider an appeal of the decision on the basis of a deemed refusal under Articles 10(7) and 12(4)(a)(ii) of the Regulations.
In a written submission sent to this Office on 26 January 2015, the Council set out its view that because the requirements of Article 6(1) of the Regulations were not met, and in particular the statement of "name, address and other contact details" under 6(1)(c), it was unable to establish whether the appellant is a natural or legal person entitled to make a request.
The Council cited practical difficulties associated with correspondence on Twitter as justification for not accepting requests in that medium. The identified shortcomings of Twitter include: the 140 character limit, limited space for file attachments, the open nature of correspondence, the fact that public conversations may be interrupted by comments from other users, and the fact that the account relates to the work of the Council as a whole, and is not a dedicated contact point for environmental matters.
In written submissions made to this Office, the appellant relied on Article 6(1)(a) of the Regulations, together with the content of Recital 9 of the Directive, section 9 of the E-Commerce Act 2000, and decisions of the UK Information Commissioner in support of the validity of requests made by Twitter message. The appellant argued that the means of correspondence is at the discretion of the applicant, and that the Council was obliged to reply in the form of the applicant's choosing.
The appellant refers to the previous Commissioner in HoA Action Group and Kildare County Council) CEI/08/0001, and to The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] in support of the argument that unincorporated bodies can make requests under the Regulations. The appellant argued that the name of a natural person is not required under the Regulations, and submitted that its Twitter user name is sufficient name and address for the purposes of a request.
It has not been argued by the appellant that it is entitled to make an anonymous request; it has stated that it seeks recognition as an unincorporated body, in line with existing practice of this Office. The appellant has offered to supply details of a representative natural person to this Office for administrative purposes. The appellant contends that it would have provided the Council with the name of a representative natural person, but no request was made for this information.
Analysis and Findings
Relevant legislative provisions
Provisions relating to Legal Standing
Ireland and the European Union are signatories to the Aarhus Convention. The Convention sets down basic rules to promote public involvement in environmental matters. The first Pillar of the Aarhus Convention guarantees the right of access to information in environmental matters.
Article 4, Paragraph 1 of the Aarhus Convention states:
Each Party shall ensure that, subject to the following paragraphs of this Article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation...
Article 2.4 of the Aarhus Convention defines the "public" as "one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organizations or groups".
Directive 2003/4/EC incorporates parts of the Aarhus Convention relating to access to information into European Union law. The Directive differs from the Aarhus Convention by adopting narrower applicant criteria, which exclude direct consideration of "associations, organisations or groups". Under Articles 2(5) and (6), the following definitions apply;
5. 'Applicant' shall mean any natural or legal person requesting environmental information.
6. 'Public' shall mean one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups.
Under Article 3(1) of the Directive, Member States have obligations to provide access to environmental information to "applicants" (i.e. natural or legal persons) on request, whereas legal obligations to the "public" are limited to an obligation contained in Article 3(5)(a); "to support the public in seeking access to information".
Article 3(1) of the Regulations defines an "applicant" as "any natural or legal person requesting environmental information pursuant to these Regulations". The Regulations do not include a definition of "the public" or consideration of "associations, organisations or groups".
Provisions relating to requests for access to environmental information
Articles 3(1) and 6(1) of the Regulations, set out above, define requests for the purposes of the Regulations.
Article 7(2) of the Regulations states:
(2) (a) A public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and subarticle(10), not later than one month from the date on which such request is received by the public authority concerned.
Article 7(3) of the Regulations states:
7.(3) (a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless --
(i) the information is already available to the public in another form or manner that is easily accessible, or
(ii) access in another form or manner would be reasonable.
(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
Provisions relating to Statutory Interpretation
Schedule 1, Part 1 of the Interpretation Act 2005 defines the meaning of the word "writing" generally as:
"...printing, typewriting, lithography, photography, and other modes of representing or reproducing words in visible form and any information kept in a non-legible form, whether stored electronically or otherwise, which is capable by any means of being reproduced in a legible form;"
Further to this, section 9 of the E-Commerce Act 2000 provides:
"9. Information (including information incorporated by reference) shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, whether as an electronic communication or otherwise. "
Other relevant provisions:
Article 14 of the Regulations provides that, in performing functions under the Regulations, public authorities "shall have regard to any guidelines published by the Minister". The Minister has published such guidelines and, to the extent relevant, I have had regard to these guidelines in the course of this review.
Assessment of Twitter as a medium for making requests
The Council has argued that Twitter is an inappropriate medium for correspondence due to its truncated format and public nature. In its submission, the Council describes Twitter as "a useful social media tool for informal short communication perhaps for making enquiries about making an AIE request or other Council services".
As a matter of general application, the provisions of the Interpretation Act 2005 and the E-Commerce Act 2000, set out above, provide that electronic writing and communication are capable of having full legal effect. The Regulations reinforce this position by specifying that requests may be made in electronic form. The words "made in writing or other electronic form" in Article 6(1)(a) of the Regulations do not specify a particular mode of transmission, requests need only be "made".
It is clear that the initial Twitter communication by the appellant was effective despite the constraints of the medium; the message was addressed to the Council on the morning of 12 September 2014, and shortly thereafter an IT official forwarded full details of the request to the Council's environment section for consideration and reply. Had the appellant forwarded the request by email, as was stipulated by the Council, this would not have changed the situation in any practical way since the information had already been transmitted to the relevant official in full. Therefore, although Twitter is undoubtedly an unsatisfactory method for carrying out complex correspondence, it was sufficient for the effective delivery of a request in this case.
There was no obligation on the Council to respond publicly to the appellant; it would have been reasonable to request that the appellant correspond privately, using Twitter's "direct message" function. In addition, Article 7(3) of the Regulations provides that a public authority may give access to environmental information in a form or manner that it considers reasonable, (however this extends only to the form and manner of access, not to the form or manner of the request). Had the Council accepted the Twitter request, it would have been entitled to subsequently specify a more reasonable form and manner for access.
In some respects, the appellant artificially restricted communication with the Council to Twitter perhaps in order to prove point. In a Twitter exchange of 18 September 2014, the appellant stated that it did not wish to contact the Council's environment section directly by email, as "they do not have a Twitter account & I want to communicate via Twitter". I do not believe such an approach to official communication is practical or realistic; Twitter accounts are typically maintained centrally on behalf of entire organisations. It would be reasonable for a public authority, having acknowledged a request made on Twitter, to direct that subsequent correspondence on the request be carried out with an AIE officer, and in a more convenient medium. Indeed, it seems to me that applicants who wish to have access to environmental information and have their requests dealt with in a timely and efficient manner would be well advised to contact the designated officer with responsibility for AIE in the first instance. Member States are required by the Directive to make practical arrangements (including the designation of information officers) for the effective exercise of the right to environmental information.
Nevertheless I find that Twitter can constitute an "electronic form" of communication for making requests, despite its limitations. Public authorities engaging in social media activity cannot discount the possibility that legally valid requests will be transmitted to them. It is important that officials managing social media accounts on behalf of public authorities are trained to recognise AIE requests. Equally, it is important that applicants act reasonably and in good faith in exercising their AIE rights having regard to the resources necessary to deal effectively with requests and the likelihood that clear requests directed to the public authority's designated officer are more likely to achieve the overriding aim of securing timely access to the information sought.
Having regard to all of the above, I find that the Council was not entitled to refuse to accept the request made on Twitter in this case.
Assessment of the requirements of Article 6(1)(c) of the Regulations
The Council submits that the appellant has failed to specify a name and address, which are mandatory requirements under Article 6(1)(c) of the Regulations. The appellant has submitted that its Twitter user account name (@windnoiseinfo) is both name and address for the purpose of the Regulations, acting as an identifier and also a method for receiving written communications. Social media websites and email addresses include name information as a matter of course; for instance, accessing the "@wexfordcoco" Twitter website unambiguously discloses the identity of the Council.
Notwithstanding this, an applicant must provide sufficient detail of their name to give anyone reading a request a reasonable indication of their identity. In the instant case, the applicant's Twitter account discloses the name "Wind Noise Info". It would be reasonable for the Council to assume this is not the name of a natural person. The appellant's stated name could potentially be the name of a legal person, such as a registered company name or business name (and not necessarily registered in this jurisdiction) - however, no information whatsoever was provided by the appellant to substantiate its legal personality. In the circumstances, I find that the request of 12 September 2014 did not contain sufficient detail to give the Council a reasonable indication of the appellant's identity.
The issue of whether a social media website can serve as an address for the purposes of Article 6(1)(c) is more complex. The word "address" is commonly used in reference to the particulars of a place where a person lives or where an incorporated body is registered. In recent years, the word address has also been used to refer to destinations for electronic correspondence, as currently defined in the Oxford English Dictionary:
address - noun - Computing - a string of characters which identifies a destination for email messages or the location of a website.
Each user of Twitter has a unique website address, i.e. a string of characters that indicates the location of their profile, where they can be contacted. As a result, giving the word "address" its plain meaning may lead to two possible interpretations. I must therefore decide between the Council's interpretation of Article 6(1), which tends towards a narrow interpretation of the words "name and address", and the more expansive interpretation suggested by the appellant.
The Council submits that details of name and physical address are necessary to determine whether an applicant is a "natural or legal person" under Article 3(1) of the Regulations. This approach is problematic, as it assumes all applicants must have a physical address, and that a physical address may be required as a validation measure. A better view is to say that the purpose of requiring an address is to ensure robust channels of communication are established between public authorities and applicants.
The latter view is preferable in the context of the Supreme Court's judgment in National Asset Management Agency v Commissioner for Environmental Information  IESC 51. In that case the court held that when interpreting the Regulations, it is necessary to understand exactly what the Directive does and means, which may also mean interpreting the provisions of the Aarhus Convention.
O'Donnell J., at paragraph 10, sets out the general approach to be taken when interpreting European Union legislation, stating
It does not seem to me to be possible, and if possible, would not be correct, to approach the question of interpretation solely through the prism of national law, and the sometimes elaborate approach to statutory interpretation in Irish law in particular. There are rules for the interpretation of legislation introduced implementing an international treaty. In particular, this specific obligation undertaken by Ireland as a member of the EU requires that the courts approach the interpretation of legislation in implementing a directive, so far as possible, teleologically, in order to achieve the purpose of the directive.
Adopting a teleological approach requires analysis of the purposes to be achieved by the Directive. Recitals 8 and 9 to the Directive are particularly relevant in this regard, as they set out underlying reasons in the following terms:
(8) It is necessary to ensure that any natural and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.
(9) It is also necessary that public authorities make available and disseminate environmental information to the general public to the widest extent possible, in particular by using information and communication technologies.
Recital 9 to the Aarhus Convention states:
9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.
The content of the Recitals, read together with the substantive provisions of the Directive, lead me to the conclusion that the purpose of the Directive is to provide access to environmental information to any person, without discrimination as to location or interest, while implementing information and communication technologies where possible. Accordingly, the term "address" in Article 6(1)(c) of the Regulations, should not be interpreted strictly if to do so would have the effect of excluding persons who cannot provide a physical address, or who choose to use electronic means to communicate. Accordingly, I find that an "address" under the Regulations may include electronic correspondence addresses, such as email or social media websites, in addition to physical addresses.
Consequently, I find that a request made via online social media website operated by, and disclosing the name of, a natural or legal person is capable of constituting a valid name and address under Article 6(1)(c) of the Regulations. For these reasons, I find that the Council was not justified in stating that the request did not disclose the appellant's address for the purposes of Article 6(1)(c) of the Regulations, however I affirm the Council's decision to the extent that the request did not disclose the name of an applicant.
Legal standing of unincorporated bodies under the Regulations
Article 3(1) of the Regulations defines an "applicant" as any "natural or legal person".
This definition is adapted from the definition of "the public" set out in the Aarhus Convention, but unlike the Convention, "associations, organizations or groups" of natural or legal persons are not expressly included as applicants in the Regulations.
The Aarhus Guide discusses the definition of "natural or legal person", stating:
"A natural person is a human being, while "legal person" refers to an administratively, legislatively or judicially established entity with the capacity to enter into contracts on its own behalf, to sue and be sued, and to make decisions through agents, such as a partnership, corporation or foundation."
With regard to the distinction in standing between "natural and legal persons", and "their associations organizations or groups", the Aarhus Guide States
"In most cases, an association, organization or group of natural or legal persons will itself have legal personality, and therefore will already fall under the definition. The language can only be interpreted, therefore, to provide that associations, organizations or groups without legal personality may also be considered to be members of the public under the Convention. This addition is qualified, however, by the reference to national legislation or practice. Thus, ad hoc formations can only be considered to be members of the public where the requirements, if any, established by national legislation or practice are met. Such requirements, if any, must comply with the Convention's objective of securing broad access to its rights."[emphasis in the original]
In Ireland, the locus standi of unincorporated environmental entities under the Aarhus Convention as implemented by Directive 2003/35/EC (the Public Participation Directive) was addressed by the Supreme Court in the case of Sandymount and Merrion Residents Association -v An Bord Pleanála & ors  IESC 51. In that case, Clarke J. assessed relevant English caselaw and held that "in the ordinary course as a matter of common law, an unincorporated body...could not bring court proceedings." Clarke J. went on to state "Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality. However, it is also clear that there can be, whether by legislation or otherwise, exceptions to that general rule." In Sandymount the Court found that the association in question had standing and capacity on the basis of legislative provisions.
Previously, in the case of National Maternity Hospital -v- Information Commissioner  IEHC 113, Quirke J. held that the Information Commissioner was entitled to accept an application from a "person" who was a requester under the Freedom of Information (FOI) Acts, in circumstances where the requester was not incorporated at the time of the FOI request. At all material times in that case, the name and address of the Chairperson of the group was known.
The status of unincorporated entities under the Regulations was addressed by the previous Commissioner in the case of HoA Action Group and Kildare County Council CEI/08/0001. The applicant in that case was an unincorporated group. The original request and all subsequent written correspondence, including the signed appeal, were made by a named individual described as Chairperson of the "Hill of Allen Action Group". An address and telephone number for this individual were provided. Accordingly, since it was dealing with an identifiable individual, the Commissioner did not consider it necessary to establish whether the group was a company limited by guarantee. The Commissioner relied on Quirke J.'s remarks in National Maternity Hospital -v- Information Commissioner in support of this approach.
Although recognition of unincorporated bodies when accompanied by details of a representative natural person is not specified by the Regulations, this practice aligns with the definition of "the public" set out in the Aarhus Convention, and the obligation to assist unincorporated entities under Article 3(5)(a) of the Directive. This approach is also supported by the extensive legal standing of natural persons under the Regulations. The right of access to environmental information is irrespective of nationality, country of residence, or interest in the information sought. It would serve no useful purpose to restrict applications by associations of natural persons absolutely, if each individual member had full legal standing to apply on behalf of the association.
Nevertheless, the appellant's request of 12 September 2014 was materially different to the requests made in HoA Action Group -v- Kildare County Council and National Maternity Hospital -v- Information Commissioner. In both of those cases, named representatives were identified from the outset, whereas no member of WindNoiseInfo was identified on the face of the initial request. The appellant asserts that it would have provided contact details of a natural person for administrative purposes had it been requested to do so by the Council. However, given the opaque nature of the initial request, I am satisfied that the Council were justified in treating the Twitter request as invalid in this instance, and not proceeding further. I am also satisfied that the Council's email of 22 October 2014 provided ample information to the appellant as to how a procedurally correct request could be made.
Accordingly, I find that the Council was justified in deciding that the request was invalid in circumstances where details of a representative member were not provided by the appellant.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Council in this case and I find, for the reasons set out above, that it was justified in its decision that the request was not valid. However, I vary the basis for the decision in accordance with the findings detailed above.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Commissioner for Environmental Information